Session of 1999
By Senator Clark

  9             AN  ACT concerning civil procedure and civil actions; relating to expe-
10             dited determination of strategic lawsuits against public participation
11             actions; providing for assessment of attorney fees, costs and damages
12             in certain situations.
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. This act may be cited as the citizen participation in gov-
16       ernment act of 1999.
17             Sec.  2. (a) The legislature finds and declares that:
18             (1) The framers of our constitutions, recognizing citizen's participa-
19       tion in government as an inalienable right essential to the survival of
20       democracy, secured its protection through the right to petition the gov-
21       ernment for redress of grievances in the first amendment to the United
22       States constitution and section three of the bill of rights of the state of
23       Kansas;
24             (2) the communications, information, opinions, reports, testimony,
25       claims and arguments provided by citizens to their government are es-
26       sential to wise government decisions and public policy, the public health,
27       safety and welfare, effective law enforcement, the efficient operation of
28       government programs, the credibility and trust afforded the government
29       and the continuation of America's republican form of government
30       through representative democracy;
31             (3) civil lawsuits and counterclaims, often claiming millions of dollars,
32       have been and are being filed against thousands of citizens, businesses
33       and organizations based on their valid exercise of their right to petition,
34       including seeking relief, influencing action, informing, communicating
35       and otherwise participating with government bodies, officials or employ-
36       ees or the electorate;
37             (4) such lawsuits, called "strategic lawsuits against public participa-
38       tion" or "SLAPPS," are typically dismissed as unconstitutional, but often
39       not before the defendants are put to great expense, harassment and in-
40       terruption of their productive activities;
41             (5) the number of SLAPPS has increased significantly over the past
42       30 years;
43             (6) SLAPPS are an abuse of the judicial process; they are used to
44       censor, chill, intimidate or punish citizens, businesses and organizations
45       for involving themselves in public affairs and controlling SLAPPS will
46       make a major contribution to lawsuit reform;
47             (7) the threat of financial liability, litigation costs, destruction of one's
48       business, loss of one's home and other personal losses from groundless
49       lawsuits seriously affects government, commerce and individual rights by
50       significantly diminishing public participation in government, in public is-
51       sues and in voluntary service;
52             (8) while courts have recognized and discouraged SLAPPS, protec-
53       tion of these important rights has not been uniform or comprehensive;
54       and
55             (9) while some citizen communications to government inevitably will
56       be incorrect, unsound, self-interested or not in good faith, it is essential
57       in our democracy that the constitutional rights of citizens to participate
58       fully in the process of government be uniformly, consistently and com-
59       prehensively protected and encouraged.
60             (b) The purposes of this act are:
61             (1) To protect and encourage citizen participation in government to
62       the maximum extent permitted by law;
63             (2) to create a more equitable balance between the rights of persons
64       to file lawsuits and to trial by jury and the rights of persons to petition,
65       speak out, associate and otherwise participate in their governments;
66             (3) to support the operations of and assure the continuation of rep-
67       resentative government in America, including the protection and regu-
68       lation of public health, safety and welfare by protecting public partici-
69       pation in government programs, public policy decision and other actions;
70             (4) to establish a balanced, uniform, comprehensive process for
71       speedy adjudication of SLAPPS as a major contribution to lawsuit reform;
72       and
73             (5) to provide for attorney fees, costs and damages for persons whose
74       citizen participation rights have been violated by the filing of a SLAPP
75       against them.
76             Sec.  3. Acts in furtherance of the constitutional right to petition, in-
77       cluding seeking relief, influencing action, informing, communicating and
78       otherwise participating in the processes of government, shall be immune
79       from civil liability, regardless of intent or purpose, except where not
80       aimed at procuring any government or electoral action, result or outcome.
81             Sec.  4. This act applies to any motion to dispose of a claim in a ju-
82       dicial proceeding on the grounds that the claim in based on, relates to,
83       or is in response to any act of the moving party in furtherance of the
84       moving party's right as described in section 3 and amendments thereto.
85             Sec.  5. On the filing of any motion as described in section 4 and
86       amendments thereto:
87             (a) The motion shall be treated as a special motion to dismiss:
88             (1) The trial court shall use a time period appropriate to preferred
89       or expedited motions; and
90             (2) the moving party shall have a right of expedited appeal from a
91       trial court order denying such a motion or from a trial court failure to
92       rule on such a motion in expedited fashion;
93             (b) discovery shall be suspended, pending decision on the motion and
94       appeals;
95             (c) the responding party shall have the burden of proof, of going
96       forward with the evidence and of persuasion on the motion;
97             (d) the court shall make its determination based upon the facts con-
98       tained in the pleadings and affidavits filed;
99             (e) the court shall grant the motion and dismiss the claim, unless the
100       responding party has produced clear and convincing evidence that the
101       acts of the moving party are not immunized from liability by the provisions
102       of section 3 and amendments thereto;
103             (f) any government body to which the moving party's acts were di-
104       rected or the attorney general may intervene to defend or otherwise sup-
105       port the moving party in the SLAPP;
106             (g) the court shall award a moving party who is dismissed, without
107       regard to any limits under state law:
108             (1) Costs of litigation, including reasonable attorney and expert wit-
109       ness fees, incurred in connection with the motion; and
110             (2) such additional sanctions upon the responding party, its attorneys
111       or law firms as it determines will be sufficient to deter repetition of such
112       conduct and comparable conduct by other similarly situated; and
113             (h) a person damaged or injured by reason of a claim filed in violation
114       of their rights under the provisions of section 3 and amendments thereto
115       may seek relief in the form of a claim for actual or compensatory damages,
116       as well as punitive damages, attorney fees and costs, from the person or
117       persons responsible and their attorneys or law firms, which may be as-
118       serted in the SLAPP action or in an independent action. The award of
119       actual damage shall not be a prerequisite for allowance of punitive
120       damages.
121             Sec.  6. As used in this act:
122             (a) "Claim" includes any lawsuit, cause of action, claim, cross-claim,
123       counterclaim or other judicial pleading or filing requesting relief;
124             (b) "government" includes a branch, department, agency, instrumen-
125       tality, official, employee, agent or other person acting under color of law
126       of the United States, a state or subdivision of a state or other public
127       authority, including the electorate;
128             (c) "motion" includes any motion to dismiss, for summary judgment,
129       for judgment on the pleading, to strike, demurrer or any other judicial
130       pleading filed to dispose of a judicial claim;
131             (d) "moving party" means any person on whose behalf the motion
132       described in section 4 and amendments thereto is filed seeking dismissal
133       of the judicial claim;
134             (e) "person" includes any individual, corporation, association, organ-
135       ization, partnership, two or more persons having a joint or common in-
136       terest or other legal entity;
137             (f) "responding party" means any person against whom the motion
138       described in section 4 and amendments thereto is filed; and
139             (g) "state" includes the District of Columbia, the Commonwealth of
140       Puerto Rico and each territory and possession of the United States.
141             Sec.  7. (a) Nothing in this act shall limit or preclude any rights the
142       moving party may have under any other constitution, statutory, case or
143       common law or rule provisions.
144             (b) This act shall be construed liberally to effectuate its purposes and
145       intent fully.
146             (c) If any provision of the act or the application of any provision of
147       this act to any person or circumstance is held invalid, the application of
148       such provision to other persons or circumstances and the remainder of
149       the act shall not be affected thereby.
150        Sec.  8. This act shall take effect and be in force from and after its
151       publication in the Kansas register.